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holding that an EEOC claim listing discrimination based only on national origin would alert EEOC to potential race and color discrimination claims as well
Summary of this case from Trivedi v. N.Y.S. Unified Court Sys. Office of Court Admin.Opinion
03 CV 1866 (JG)
September 16, 2003
BRIAN J. ELBAUM, New York, NY, for Plaintiff
JOSHUA MARCUS, Franklin Gringer, Garden City, NY, for Defendants
MEMORANDUM AND ORDER
Plaintiff Valentina Sharabura has filed federal and state claims of race, color and national origin discrimination, as well as a claim for intentional infliction of emotional distress, against her employer, Victory Memorial Hospital ("Hospital") and her supervisor, Junel Taylor. Sharabura alleges five causes of action: race, color and national origin discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Count One); race, color and national origin discrimination under the Civil Rights Act of 1991, 42 U.S.C. § 1981a (Count Two); intentional infliction of emotional distress under New York common law (Count Three); race, color and national origin discrimination under the New York State Human Rights Law, N.Y. Exec. Law § 296, et seq.; (Count Four) and race, color and national origin discrimination under the New York City Human Rights Law, N.Y. City Admin. Code § 8-107 (Count Five).
Defendants move to dismiss Sharabura's claims of race and color discrimination under Title VII pursuant to Federal Rule of Civil Procedure 12(b)(1) on the ground that she failed to exhaust her administrative remedies. They also move to dismiss Sharabura's claim for intentional infliction of emotional distress under 12(b)(6) on the ground that she failed to bring her suit within the one-year period required by the New York statute of limitations. (Def.'s Not, Mot.; Def.'s Mem. Law Supp. Mot. to Dismiss Compl. at 1.)
For the reasons set forth below, I deny the motion to dismiss the Title VII race and color discrimination claims and grant defendants' motion to dismiss the claim for intentional infliction of emotional distress.
BACKGROUND
The following facts are relevant for purposes of this motion. I assume that all of the below facts are true, as I must in deciding this motion.See Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995).
Sharabura, a white female of Russian descent, was employed as a registered nurse at the Hospital from March 25, 1996 to June 10, 2002, when she was terminated. (Am. Compl. ¶¶ 12, 27.) She alleges numerous incidents of harassment and discrimination occurring throughout her employment by Taylor, a black female who was employed by the Hospital as managing director, and who was her supervisor. (Id. at ¶ 14.) Among other things, Sharabura alleges that Taylor announced to the nursing staff that "there were to [sic] many Russian Nurses and Patients and it had to change," and issued an order that all Russian nursing staff must speak English to each other and the patients even though non-Russian employees were permitted to speak non-English languages. (Id. at ¶ 17, 18.) Other alleged harassing incidents include unjustified criticism, undesirable and unsafe assignments and false accusations that resulted in suspension and ultimately discharge. (Id. at ¶¶ 20-27.)
On October 4, 2002, Sharabura filed a discrimination charge with the Equal Employment and Opportunity Commission ("EEOC"). The form she used for her complaint had a section entitled "Cause of Discrimination Based On," followed by an invitation to check the boxes. Sharabura checked only the "national origin" box; she did not check the boxes next to "race" or "color." (Def.'s Aff., Ex. A.) In a letter attached to the EEOC charge, Sharabura stated that she and other Russian nurses were forbidden to speak Russian with each other and the patients but that other non-Russian speaking nurses were permitted to use other languages, such as Creole. She also stated that all of the Russian-speaking nurses, who served over 240 Russian-speaking patients out of the program's 300 patients, were replaced by African-American nurses. (Id.)
The EEOC issued Sharabura a right-to-sue letter on April 4, 2003. She then filed this action, pro se, on April 17, 2003. (Pl.'s Aff. Opp. Def.'s Mot. Dismiss ¶ 3.) On July 3, 2003, Sharabura., who by then was represented by counsel, filed an amended complaint alleging, in addition to national origin discrimination, race and color discrimination. (Id. at ¶ 3.)
Sharabura's counsel mistakenly entitled her papers as an opposition to a motion for summary judgment; at oral argument, she confirmed that her papers were rather intended to respond to the motion to dismiss. Thus, this opinion refers to her opposition papers in terms of a motion to dismiss, although they were entitled as opposition to summary judgment.
DISCUSSION
A. Race and Color Discrimination
Defendants argue that because Sharabura never raised claims of race and color discrimination in her EEOC charge, I lack subject matter jurisdiction over her claim. In particular, defendants assert that Sharabura has failed to exhaust administrative remedies because she did not make any allegations of discrimination based upon her race or color in her EEOC charge, and that her race and color claims are not "reasonably related" to her national origin claim.
At the outset, I note that I construe defendants' 12(b)(1) motion to dismiss for lack of subject matter jurisdiction as one under 12(b)(6) for a failure to exhaust administrative remedies. See Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000) (presentation of a Title VII claim to the EEOC is not a jurisdictional prerequisite, but rather a precondition to bringing a Title VII action that can be waived by the parties or the court); see also Crespo v. New York City Transit Auth., No. CV-00-5267, 2002 WL 398805, at *5 (E.D.N.Y. Jan. 7, 2002) (construing motion to dismiss for failure to present particular discrimination claim in EEOC charge as a Rule 12(b)(6) motion). Dismissal under Rule 12(b)(6) may only be granted if "it appears beyond doubt that the Plaintiff can prove no set of facts in support of her claim which entitle her to relief." Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992) (citations omitted).
It is well-settled that a district court can entertain Title VII claims only if they were either presented in a timely EEOC charge or are based on conduct that is "reasonably related" to the conduct alleged in the EEOC charge. See Butts v. City of New York Dep't of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998). The "purpose of the notice provision, which is to encourage settlement of discrimination disputes through conciliation and voluntary compliance, would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC." Butts, 990 F.2d at 1401 (citation omitted). See also id. at 1401-02 ("the purpose of the [Title VII] exhaustion requirement . . . is to give the administrative agency the opportunity to investigate, mediate, and take remedial action . . .") (citation omitted).
The Second Circuit has recognized three situations in which claims not alleged in an EEOC charge are "reasonably related" to the allegations in the charge. Id. at 1402. The only one relevant here is where the claim is based on conduct that would fall "within the scope of investigation which can reasonably be expected to grow out of the charge of discrimination." Id. This category allows for loose pleading in "[r]ecogni[tion] that EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims she is suffering." Id. In determining whether claims are reasonably related in this way, the Second Circuit has instructed district courts to focus on "the factual allegations made in the [EEOC] charge itself, describing the discrimination conduct about which a plaintiff is grieving." Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (citation omitted).
Courts have held that claims of race discrimination would fall within the scope of the EEOC's investigation of a claim of national origin discrimination in an EEOC charge. For example, in Deravin, plaintiff (an African-American) checked only the boxes marked "retaliation" and "national origin" as the grounds for his discrimination claim, and alleged that preferential treatment was given to employees who were Irish-American. Deravin, 335 F.3d at 199. In deciding whether plaintiffs claim of race discrimination in his federal complaint was "reasonably related" to his national origin claim in his EEOC charge, the Second Circuit recognized that "race and national origin claims may substantially overlap . . . depending on the specific facts of the case," and that "even in the absence of an express linkage between race and national origin, the specific facts alleged by a plaintiff in his or her EEOC complaint may suggest both forms of discrimination, so that the agency receives adequate notice to investigate discrimination on both bases." Id. at 201-02. The court concluded that "an allegation of preferential treatment for Irish-American employees fairly encompasses a claim of discrimination against minority employees [because plaintiffs] . . . allegations were sufficient to alert the EEOC to look for potential race discrimination." Id. at 203.
Here, I conclude that Sharabura's race and color claims are "reasonably related" to her national origin claim in her EEOC complaint. Although the two-page statement Sharabura submitted with her EEOC charge did not specifically allege discrimination based on race or color, her description of the alleged discriminatory conduct explicitly referred to race and color. The conduct that her EEOC charge characterized as national origin discrimination is the same conduct she now claims constituted race and color discrimination. An investigation of Sharabura's allegations — that the Russian nurses were fired and replaced by African-American nurses and that Russian nurses were forbidden to speak Russian but that non-Russian nurses were permitted to speak in Creole — would surely fall within the "scope of the EEOC investigation which can reasonably be expected to grow out of the charge of [national origin] discrimination." Butts, 990 F.2d at 1402. Indeed, those statements would no doubt alert the EEOC of the potential for race and color discrimination claims. Thus, I hold that Sharabura can properly proceed on her claims of race and color discrimination under Title VII.
The case law that defendants cite to support their contention does not compel a different result. In O'Neal v. State Univ. of New York, No. O1-CV-7802, 2003 WL 1524664, at *3 (E.D.N.Y. Mar. 24, 2003), the court held that a claim of race discrimination was not reasonably related to an administrative claim of sex discrimination in which the claimant did not reveal her race. As a general matter, race and national origin are obviously more related than race and sex. Moreover, the specific factual allegations in the EEOC charge here explicitly referenced the disparate treatment based on race, on which Sharabura bases her federal claim. Defendants also cite to Grillo v. New York City Transit Auth., 122 F. Supp.2d 385 (E.D.N.Y. 2000), but that case cuts against their position. In Grillo, the court held that even though the plaintiff, a white male of Italian descent, filed an EEOC charge asserting race discrimination only, he could bring a claim of national origin discrimination in court because it was "reasonably related" to the claim of race discrimination. Grillo, 122 F. Supp.2d at 390.
B. Intentional Infliction of Emotional Distress
Defendants move to dismiss Sharabura's claim of intentional infliction of emotional distress on the ground of untimeliness. The statute of limitations for a claim of intentional infliction of emotional distress is one year. See N.Y. C.P.L.R. § 215 (2003); Kwarren v. American Airlines, 303 A.D.2d 722, 757 N.Y.S.2d 105 (2d Dept 2003) (dismissing claim for intentional infliction of emotional distress where alleged comments were made over one year prior to the filing of the complaint). Sharabura, in her amended complaint, has alleged several instances of alleged discrimination against defendants which occurred between November 2000 and June 10, 2002. It is not clear which incidents she is basing her claims of intentional infliction of emotional distress upon. (Marcus Aff, Ex. C., ¶¶ 44-49.) However, even assuming the claim is based upon the most recent event, i.e., her termination on June 10, 2002 (Id. at ¶ 27), the claim is time-barred because Sharabura filed her amended complaint on July 26, 2003, more than one year after the termination. In her papers in opposition to the motion, Sharabura did not dispute nor even address the statute of limitations argument. At oral argument, her counsel made the novel, and admittedly unsupported, request that I deem the statute to have been tolled by counsel's stated intention to file the claim. I decline that request.
I also note that the filing of an EEOC charge does not toll the statute of limitations on an intentional infliction of emotional distress claim.See Cabrera v. Quik Park Columbia Garage Corp., No. OO-CV-3576, 2000 WL 1897348, at *l-2 (E.D.N.Y. Dec. 18, 2000) (noting that although the Second Circuit has yet to provide guidance on the issue, the majority of the district courts in the Second Circuit have held that the pendency of an EEOC claim does not toll the statute of limitations, on state claims). Thus, Sharabura cannot proceed on her claim for intentional infliction of emotional distress.
Finally, even if this claim was not barred by the statute of limitations, Sharabura's claim would still fail because the conduct of which she complains is not "extreme and outrageous" enough to constitute the tort of intentional infliction of emotional distress. Under New York law, the elements of a claim of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) intent to cause severe emotional distress; (3) a causal connection between the conduct and injury; and (4) severe emotional distress. See Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996). New York sets a particularly high bar for conduct that is so "extreme and outrageous" that is actionable under this tort. See Murphy v. Am. Home Prod. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86 (1983) ("so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community") (citation omitted).
Here, Sharabura asserts that her employer criticized her unfairly, gave her undesirable assignments and ultimately terminated her. As a matter of law, those alleged actions do not meet New York's high threshold for conduct that is actionable under the tort of intentional infliction of emotional distress. See,e.g.,Spence v. Maryland Gas. Co., 995 F.2d 1147, 1158 (2d Cir. 1993) (employer's criticisms of plaintiff s job performance and conditional threats of termination fall far short of the "extreme" and "outrageous" behavior that is required for intentional infliction of emotional distress under New York law). Thus, for this reason too, I conclude that this claim must be dismissed.
CONCLUSION
For the reasons stated above, defendants' motion to dismiss plaintiff's race and color discrimination claims under Title VII is denied. The motion to dismiss the claim for intentional infliction of emotional distress as untimely is granted.
So Ordered.